Prop 8 Ruling Roundup II

In the wake of Judge Vaughn Walker’s decision last month in Perry v. Schwarzenegger striking down the California constitutional amendment defining marriage as the union of a man and a woman, legal scholars and analysts continue to weigh in on the ruling.

The decision has now been stayed by a panel of the Ninth U.S. Circuit Court of Appeals. A briefing schedule has been set up, and the appeal, including arguments over issues of legal standing for Prop 8’s proponents, is scheduled for hearing this December. Meanwhile, authorities on various sides of the policy debate over same-sex marriage continue to find fault with Walker’s reasoning or result.

As for Proposition 8, is it so hard to see why people might believe that a single judge overturning the will of seven million voters is an affront to democracy? And that seeing merit in retaining the structure of the most ancient and fundamental of all social institutions is something other than hatred of gays—particularly since the opposite-gender requirement has characterized virtually every society in all the millennia until just a few years ago?

Walker’s 126-page decision is a thorough elucidation of the testimony of expert witnesses opposing Proposition 8. Liberal commentators have hailed the decision because its “evidence” supposedly destroys all the “myths” raised by opponents of gay marriage, as if it were the last word. I don’t think so. Walker’s opinion also reads as if he had already decided. But more important, the decision is fundamentally based on the expert testimony of one side. In this, he wades into a contentious legal area: Who is an expert witness? Who is a purveyor of “junk science?” Deciding this is hard enough when trying to qualify experts in the “hard sciences,” such as medicine and engineering. But it is enormously more difficult when trying to qualify social and behavioral science experts. Social science is indeed a “soft science,” despite the protestations of its practitioners.

Robert K. Vischer, professor of law at the University of St. Thomas, wrote in Commonweal:

When a judge takes a hotly contested definition of marriage and labels it a “finding of fact,” we have not discovered an ingenious end-run around the turmoil of our culture wars. We have simply witnessed another volley in those wars. Tempting as it may be, the rule of facts cannot escape the moral controversy enveloping the marriage debate. Pretending otherwise serves neither the long-range interests of same-sex marriage advocates nor the vitality of our political community.

Walker’s refusal to stay his judgment pending appeal [is] the latest step in his gamesmanship to try to deprive Prop 8 proponents of their appeal rights and to avoid effective appellate review of his shenanigans. Walker’s course of conduct would be sufficient cause for national scandal in any case. That it comes in a case that aims to radically remake the central social institution of American society makes it utterly intolerable. I can’t imagine that any federal district judge has ever committed more egregious and momentous acts of malfeasance in a case.

Wilson Huhn, professor of constitutional law at the University of Akron School of Law, wrote:

There is another sense in which the opponents of same-sex marriage may stand a chance in proving that the law may make a difference. They also contend that a mother is a role model for her daughters and a father is a role model for his sons. A mother shows her daughters how a woman should act, while a father shows his sons how to be a man. This may be true. In my opinion it is not only possible but probable that gender roles are taught, and taught most effectively, in the home. Accordingly, if the government seeks to maintain and reinforce men and women in strict gender roles it makes sense that families should be encouraged to reflect this pattern—through legal compulsion if necessary.

This type of legal gender-assignment may comport with fundamental religious doctrine, particularly within religions that encourage women not to work outside the home and that permit only men to serve as priests. But our society has now rejected any role for the law to play in determining how “manly” or how “womanly” individuals choose to be. Under the Constitution a man can be a “mother” and a woman can be a “father” if they choose. Judge Walker’s decision goes far beyond gay rights. It concerns the right of every single person in society to accept or reject traditional gender roles.

Archeologists of the law may one day come upon these words: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.” Now imagine recasting the sentence in this way: “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to beget children.”

The first line was written by federal Judge Vaughn Walker in San Francisco as he struck down the constitutional amendment passed by the voters of California, a move to restore the traditional understanding of marriage as a legal relation of a man and a woman. Judge Walker’s argument made sense only if the notion of begetting was conspicuously removed from the very meaning and purpose of marriage. Surely, marriage is not necessary for love: There is genuine love between grandparents and grandchildren, brothers and sisters, and in the nature of things they cannot be lesser loves because they are not attended by penetration and expressed in marriage.

Marriage is not necessary for love, but the law of marriage finds its deep justification as a framework for the begetting and nurturing of children.

Ken Blackwell and Ken Klukowski, senior fellow and special counsel, respectively, at the Family Research Council, wrote:

[Judge Walker’s] mistake ultimately comes from a false choice he sets up as the legal issue. He writes, “The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right.”

That’s not the issue. The issue is whether a person has the right to redefine marriage. The district court tried to deal with that issue by declaring its own definition of marriage: “Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household.”

One of the problems with that definition is the word “two.” Why only two? Dozens of countries across the world practice polygamy, where a man can have more than one wife. Islam, for example, permits a man to have four wives, and that’s the law in Muslim nations. Why does the court insist on two?

This unquestionably was the correct decision as to a stay. Contrary to the glib arguments that there is no likelihood of success on appeal, the District Court Order is the outlier; that doesn’t mean that the 9th Circuit will overturn it on the merits, but clearly there is a reasonable likelihood of the result being overturned. The argument that there was no harm was weak, because the 9th Circuit certainly saw what happened in the state court process, where the California Supreme Court, though upholding Prop. 8, had to grapple with what to do with same sex couples who had married in the interim. The 9th Circuit didn’t need that headache, and neither did society. Given the expedited schedule, the relatively short delay in such marriages resulting from a stay was not enough to overcome the legal chaos similar to what happened in the state courts.

Charles A. "Chuck" Donovan is the president of the Charlotte Lozier Institute. He served as legislative director of the National Right to Life Committee more than three decades ago, worked as a writer for President Reagan, helped to lead the Family Research Council for nearly two decades and most recently has been senior research fellow in Religion and Civil Society at The Heritage Foundation.

Join The Discussion

One of the most frustrating parts of this is that we seem to keep arguing from some kind of moral or philosophical point of view assuming that our opponent will see things our way. Well they do not! What we see as absurd, the other side sees as their justification. The discussion really revolves around something difficult for me to understand. After years of being asked to accept 'diversity', now

However for my own point of discussion, I would like to take the other side from a non-moral, non-religious, non-philosophical point of view. If we change the definition of this word, marriage, to mean what they say, what are the implications? (Surely a change would not be proposed without those proposing it understanding the implications.)

The most obvious problem seems to be communication. It is difficult to communicate when words have multiple meanings. Proponents of this point always like to say that "words evolve." And to that point I agree. However, the meaning of this word is not evolving — it is being voted on. This is a forcible redefinition, not an evolution. This is also a quick retort without understanding of "how" words evolve. As words have evolved, they have always done so outside of their original context. This is important because when we need to discern between two or more meanings, context is our guide. Sure green defines a color, but it also means that you are "new" to something; if you look 'green' then you look sick or ill; and if you 'go green' we expect that you support an environmental cause or point of view. But in all of these cases, this new meaning did NOT describe a new color, like blue. Another example would be the word 'bomb'. Of course it is a type of weapon, but if you are a comedian then the context is that you performed poorly at an event. If men are talking about a woman, it is meant as a compliment, that she is extra special. And sometimes it is even a type of popsicle. But at no point does a person hearing it, in any context, ever think you are talking about a new weapon, like a gun or a sword. Sure words evolve, but not within the same context of their previous meaning and never voted on!

Next let us take a simple example of how this would work in reality if marriage means "two consenting adults" instead of a relationship of one man, one woman. Opening a Victorian age novel, one might find the following sentence: "Three married gents retired to the parlor for a smoke." The current understanding of marriage allows one to read a lot into the sentences. Since the wives are not present, we could reasonably assume that the conversation is intentionally private or specifically for the men alone. Or that in this instance, we are able to get a sense of the time period since it is the men who engage in smoking and not the women. However after a simple application of the 'tomorrow' of those for gay marriage, this simple sentence begs the first and most obvious question after reading: Who is married to whom?! Are the men married to each other? To men who are not present? To women? Some to women others to men? This one simple sentence is completely confusing!

But in 'the day after' we need not take a sentence from a 150 year old book. Since we will be the only society on earth and in the 4000 year recorded history of earth that had a different meaning for the word 'marriage,' how do we translate this new word? The Italians do not define marriage the way we will, so what is the solution proposed by the proponents of the change? Of course you could not use the Italian word for marriage because it does not carry the same meaning — it is not a proper translation. However if you change the words to reflect the correct meaning, then what was the point of the change to begin with? And in this example, I am only picking those of differing languages. Think of those who also speak and write in English. How do we translate 'marriage' within our own language to the Aussies, British, etc.? Again, since our meaning for marriage will be different than theirs, we will need to change the words to convey the proper meaning to our counterpart. But then, again what is the purpose of the change?!

Finally we should ask the implications of such a change on society. Should we really be allowed to vote on the definition of words? If yes, what are the parameters? Is anything acceptable so long as it makes it to the ballot? If the answer is no, the discussion would be over. So logically the presumption must be 'yes.' If so, my proposition next will be that we change the symbol '8' to mean the quantity of seven. The quantity of eight will still, of course, use the symbol '8', but seven will now be '8'. Why? Because it is really unfair to that quantity that the symbols are not 'equal.' (We are making this change for equality, right?!) 8 + 8 = 15…. or 16… or 14. See, that is not confusing. To those who would be upset, just tell them it is context related. I am sure they will understand.

Mostly I would like to do it as a ballot measure in California. We have thus far so enjoyed the conversations that follow the 'No on 8' and 'Yes on 8' discussions that it would be fun to rehash them in a new context. Think of the wonderfully equal foolishness such a conversation would illicit! Each side thinking the other side's arguments are so foolish, all the while missing the point that it is the initial premises themselves that make no sense.

I entirely agree with Michael in that "It doesn’t matter how many people want it. If something violates the US Constitution, it WILL be struck down. Period." This is why the Constitution is the law of the land, not always the simple majority of the electorate. However, Proposition 8 DID NOT and DOES NOT violate the US Constitution. It is completely within the rights of a state or a people to define what types of programs they wish to endorse and support. If it is withing the rights of a state to grant marriages, it is within the rights of the state to define what "marriage" means. The State of California has done so through the CONSTITUTIONAL action of its citizens.

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